Appellant in Criminal Appeal No.158/2012 on the file of Additional Sessions Court-I, Thiruvananthapuram, is the revision petitioner herein. The revision petitioner was arrayed as accused in S.T.No.241/2010 on the file of the Judicial First Class Magistrate Court-III, Nedumangad, which was taken on file on the basis of a private complaint filed by the 2nd respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called ‘the Act’) and he was convicted and sentenced by the trial court against which he preferred criminal appeal No.158/2012 before the Sessions Court, Thiruvananthapuram, as Crl.Appeal No.158/2012, which was made over to First Additional Sessions Court, Thiruvananthapuram, for disposal by the learned Sessions Judge. Since the revision petitioner did not take steps to serve notice on the respondent in the appeal, the learned Additional Sessions Judge dismissed the appeal for default by the impugned judgment, which is under challenge before this court by filing the above revision.
2. Since the respondent had appeared on admission, this can be admitted and disposed of today itself after hearing both sides. So the revision is admitted, heard and disposed of today itself.
3. The counsel for the revision petitioner submitted that, the court should not have dismissed the appeal for default, as there is no provision for dismissal of the appeal for default and it should have been disposed of on merit.
4. On the other hand, the leaned counsel appearing for the 2nd respondent submitted that, though it was mentioned as dismissed for default, what was intended by the court below is the dismissal of the appeal under Section 204(4) of the Code of Criminal Procedure for not taking steps by the revision petitioner.
5. It is an admitted fact that the revision petitioner was convicted and sentenced in S.T.No.241/2010 of the Judicial First Class Magistrate Court-III, Nedumangad, for the offence under Section 138 of the Act against which Criminal Appeal No.158/2012 was filed before the Sessions Court, Thiruvananthapuram, and which was made over to Additional Sessions Court, Thiruvananthapuram. Since steps was not taken by the revision petitioner to serve notice on the respondent, the learned Additional Sessions Judge had disposed of the appeal by the impugned judgement which reads as follows:
“No representation for appellant. No steps taken so far despite directions. Hence appeal is dismissed for default”.
6. It is true that Crl.Appeal once admitted cannot be dismissed for default and it can be disposed of only on merit which was observed by the Hon'ble Supreme Court in the decision reported in [1996(2) KLT 424 (SC)] Bani Singh v. State of U.P., which later reiterated in the decision reported in (2013(3) Scale 152) K.S. Panduranga v. State of Karnataka.
7. But at the same time, if the petitioner did not take steps to serve notice on the respondent as directed, court can invoke the power under Section 204(4) of the Code of Criminal Procedure to dismiss the appeal, for not taking steps and that has happened in the case. So the latches on the part of the revision petitioner, in not taking steps has to be viewed seriously and that will have to be penalised before giving an opportunity to proceed with the appeal in the court below on merit.
8. The counsel for the first respondent expressed his willingness to appear before the court below, even without getting a summons from the court below, if a date is fixed by this court for appearance and the counsel only wanted speedy disposal of the appeal. So considering the circumstances, this court feels that, the revision can be disposed of as follows:
The revision will be allowed on payment of cost of ₹1,500/- to the Kerala State Mediation and Conciliation Centre on or before 25.11.2014 and if the payment is made and proof of payment is produced before the office, then the revision will be allowed and the order of the lower court will be set aside and the matter will be remitted to the court below for fresh disposal in accordance with law.
Post on 26.11.2014 for compliance of the order.
Sd/-
K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss